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pachamama
Recent Developments in Ecuador: Rights of Nature
The Constitutional Court selects cases to develop the "content" of the legal rights of nature.
Jul 17, 2020
When we think of Ecuador, the first thing that may come to mind are the Galapagos Islands--a place out of history, where Charles Darwin thought big thoughts amidst giant tortoises, iguanas, and finches.
For others, Ecuador may conjure images of the Amazon or the Andes, mangroves or rainforest. All of these ecosystems and species are wonderous, and yet they remain under threat.
In 2008, Ecuador took the extraordinary step of enshrining the legal rights of nature--or Pachamama--in its national constitution. It was the first country to do so.
It may not seem surprising that Ecuador, with these extraordinary ecosystems and biodiversity, would be a world leader in protecting them.
In 2008, Ecuador took the extraordinary step of enshrining the legal rights of nature--or Pachamama--in its national constitution. It was the first country to do so. And in so doing, it established the highest legal protections for nature that exist in Western law.
As a person privileged to have participated in that process, I continue to marvel that the nation took that step. It's never easy to go first.
Over a decade later, as we work in a range of countries to advance the rights of nature, we are witnessing a significant shift in how people, civil society, governments, and even courts think about nature and humankind's relationship to her.
We have now seen national laws securing rights of the natural world enacted in Uganda, New Zealand, and Bolivia. In Colombia, courts have recognized legal rights to "protection, preservation, maintenance and restoration" for the Amazon region, the Atrato River, paramos, and other ecosystems. Courts in India and Bangladesh have similarly recognized rights of river and other threatened ecosystems. In the United States and Brazil, dozens of local municipalities have enacted rights of nature laws. Tribal nations have adopted laws and resolutions recognizing rights of rivers, species, and nature. And, rights of nature legislation has been introduced into parliaments in Sweden, Philippines, and Australia.
This is a growing movement, focused on transforming how nature is treated by legal systems - from an object whose use and exploitation is codified and legitimized by human laws - to nature being recognized as a subject of rights, including rights to exist, flourish, regenerate, evolve, and be restored.
This transformation in how we treat nature under the law is ever more important as we witness overlapping environmental crises around the world. This includes the dying off of coral reefs, species extinction rates that are far beyond natural background rates, and of course, climate change.
In the face of this, there is a growing chorus of people, institutions, and governments shouting "Enough is enough, bastante es bastante!" Courts are joining their voices, as did Colombia's Constitutional Court, which declared that it's time for humankind to take a new path forward before "it's too late."
Rights of Nature Court Cases
Since the ratification of Ecuador's new constitution in September 2008, there have been numerous cases that have been brought in court to enforce and defend the constitutional rights of nature. Importantly, Article 71 of the constitution provides the people of Ecuador with the legal authority to go to court to enforce the rights of nature. This means that if, for example, a river is being harmed by human activity, an individual can file an action in court to attempt to stop the harm and restore the river. This is exactly what happened with the Vilcabamba River, the first rights of nature case decided in Ecuador, in which the river was being harmed by road construction.
The 2015 Marmeza case involved the revocation of a permit to conduct shrimp farming in a fragile mangrove ecosystem within the Ecological Reserve of Cayapas-Mataje. The Constitutional Court reversed the provincial court's ruling, citing its failure to consider the impacts on the rights of nature, and sending the case back down to the lower court for reconsideration. In perhaps a foreshadowing of how the Court may rule going forward, in the Marmeza, case the Court wrote:
"...all the State's actions, as well as those of individuals, must be done in observance and adherence with the rights of nature."
Over the past year, and in particular over the past several months, the Constitutional Court - the highest court in the land - has selected several rights of nature cases for review. The Court has indicated that it seeks to provide "content" and standards for the rights of nature.
In May, the Court selected a case involving mining within a protected forest called Los Cedros. Impacts on the area's extraordinary biodiversity, including at-risk species such as the spider monkey and the Andean bear, are of great concern. As the Court explained in its selection of the case, "(T)he case is novel because it would allow the Constitutional Court to rule on the content of the rights of nature."
In March, the Court selected a separate case involving mining. The case involves mining concessions being issued in the Podocarpus-El Condor Biosphere Reserve and Cerro Plateado Biological Reserve - protected areas in the southern part of Ecuador.
In choosing to review this case, the Court explained that it would provide an opportunity to consider the rights of nature involving extraction activities near protected areas, as well as "the responsibilities of the entities in charge to monitor and follow up on these activities."
In addition, in 2019, the Constitutional Court selected a rights of nature case involving the Dulcepamba River. This involves a hydroelectric energy project on the river which caused flooding and death of residents of the community of San Pablo de Amali community. In choosing this case, the Court explained that it would consider the impacts on the rights of nature from the exploitation of natural resources.
Implementing the Rights of Nature
As we await the rulings of the Court, we continue to work in Ecuador on ways to implement the rights of nature. This includes providing inputs to the Court and the National Assembly on developing content and standards for enforcement and practical ways to shift environmental governance to uphold the constitutional rights of nature.
Constitutional rights are the highest form of legal protection. Protecting those rights is foremost. This means that government actions are to be consistent with and uphold constitutional rights. To achieve this requires making meaningful changes in law and policy.
Thus far, Ecuador has included some mention of the rights of nature within the country's Organic Code of the Environment (CODA). Article 6 of the Code states, "Nature's rights are those recognized in the Constitution which include the integral respect of their existence and the maintenance and regeneration of their life cycles, structure, functions and evolutionary processes, as well as restoration."
By comparison, Article 5 of the CODA describes numerous elements that comprise the human right to a healthy environment (which is secured in Article 14 of the 2008 Ecuador Constitution). For the rights of nature, the CODA leaves this to the environmental ministry.
The result is that there has not yet been a strong step in the direction of implementation of the rights of nature. Meaning, that environmental decision making in Ecuador - including how the central government reviews and considers activities and practices that will impact nature - is not yet consistent with the rights recognized at the constitutional level.
What might this look like in practice? Consider the idea of a "Rights of Nature EIS" (environmental impact statement) in which the first step in a government decision making process is to determine if a proposed activity (a mine, a forestry project, etc.) is consistent with and upholding of the constitutional rights. If it is found to be so, then the proposed project could move onto the next phase of review.
It is more important than ever to meaningfully implement and enforce the rights of nature. In selecting the recent cases, the Constitutional Court has taken a significant step in making real the promise of these rights.
To learn more about Ecuador's constitutional rights of nature and the recent selection of cases by the Constitutional Court, watch this June webinar with our Ecuador attorney, Hugo Echeverria.
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Rights of Nature: One Big Step for Nature, One Small Step for Humankind
We must consume less. We must change everything we know.
Jul 10, 2020
Between the forest fires, plagues, and locusts, it's beginning to look like humanity has finally breached the "seventh seal," initiating a showdown of biblical proportions. Unlike the holy version, however, this time humankind has only itself to blame.
In a statement released in June, leaders at the United Nations, World Health Organization, and World Wildlife Federation International declared that "pandemics such as coronavirus are the result of humanity's destruction of nature. . . the illegal and unsustainable wildlife trade as well as the devastation of forests and other wild places are the driving force behind the increasing number of diseases leaping from wildlife to humans."
Will the virus known as SARS-Cov-2 be the tipping point for humanity - the point at which we realize that our incessant bulldozing of the natural environment must end because we are destroying ourselves along with it?
Probably not. If a vaccine comes along, it's likely that the "2020 Coronavirus Pandemic" will recede in our memories just like the "1918 Flu Pandemic." The phrase "returning to normal" can already be heard on the lips of governors across the U.S., from Oregon to Florida, and elected leaders in-between.
Returning to normal, of course, means returning to an economy fueled by the belief that endless growth is possible, that the planet exists solely to fuel our iPhones, our data centers, our new "Space Force," and our seemingly endless fascination with the Kardashians.
Returning to normal, of course, means returning to an economy fueled by the belief that endless growth is possible, that the planet exists solely to fuel our iPhones, our data centers, our new "Space Force," and our seemingly endless fascination with the Kardashians. It means returning to a way of life in which our core beliefs rest comfortably uncontested - including the notion that our needs and wants should rightfully supplant all others, in the name of economic expansion, population growth, and human "exceptionalism."
It's a "normal" in which the best that humanity can offer in the name of "protecting the environment" is a system in which the biggest corporations - from manufacturing, to agribusiness, to oil and gas extraction - have the biggest voice in writing environmental regulations. Regulations which, ostensibly, are supposed to regulate their own industries. It's a normal in which those industries have more power and standing than the people or natural environment affected by their decisions.
It's a normal in which oceans continue to acidify, the forever extinction of plants and animals accelerates, forests are clear-cut and razed, mountaintops are blown off, microplastics are consumed by the smallest creatures at the ocean's deepest depths, over three hundred synthetic chemicals are now found in every child, and Siberia boils.
It's a normal in which those in power stay in power by diverting our gaze from the dominos that are falling, to reinforce our belief that everything is just fine. They know that by the time enough people worry about these "existential" threats, it will be too late to make the difficult decisions necessary to turn it around.
Turning it around means changing almost everything we know. It doesn't mean no fracking for oil and gas, it means eliminating their extraction. It doesn't mean expanding production of power by leveling mountains for industrial wind farms, it means actually reducing the amount of power that we use.
It means consuming less and using less. And when have you heard any politician running on a platform of anything but promises of "more!"?
If we're not capable of controlling ourselves, then we need rules that empower those who care to restrain those who don't.
Rights of Nature
Taking steps to recognize that nature, and yes, the planet itself, has certain rights; and empowering those who care about nature to step into the shoes of rivers, oceans, forests, and mountains to legally defend those rights in front of courts and environmental agencies, would be one big step for nature, one small step for humankind.
Using laws to limit our ability to harm basic environmental functions - the ability of waterways to provide clean water, the ability of forests to provide clean air and absorb carbon - provides a way in which people can stop others from interfering with those basic functions upon which all life relies.
Our environmental regulatory system, it seems, has merely regulated the rate at which the natural environment will disappear.
Why legal rights? Rights provide the highest form of protection for certain values. Since we value free speech, we protect that speech through the creation of a protected right to speak (First Amendment to the U.S. Constitution). Because we value the privacy of our homes, we protect that privacy by recognizing a right against certain searches of our homes by police (Fourth Amendment to the U.S. Constitution).
In addition to the argument that the essentialness of natural systems - for our survival, as well as the survival of other life on the planet - requires the highest level of protection that the law can provide, rights of nature also makes sense for another reason: because nothing else has worked.
Nearly two generations after landmark environmental laws for clean water and clean air were enacted in the U.S., with similar laws adopted around the globe, the state of the environment is worse now by almost every major statistic. While rivers don't (routinely) catch on fire anymore, it should be apparent to anyone paying attention that we are on a long, steady march to nowhere.
Our environmental regulatory system, it seems, has merely regulated the rate at which the natural environment will disappear.
Frustration with this status quo has led many to embrace a new frontier of environmental law. Beginning in 2006, cities, towns, and counties across the U.S. began passing local laws recognizing the legally-protected rights of ecosystems to "exist, flourish, regenerate, and be restored." They were driven by specific threats of siting toxic waste dumps, fracking for shale gas, corporate water withdrawals, new high voltage power lines, and aerial pesticide spraying.
In 2008, the people of Ecuador created a new precedent, overwhelmingly ratifying a new national constitution recognizing legal rights of nature, or Pachamama.
Over the last five years, courts in India, Colombia, and Bangladesh have declared that rivers and other ecosystems have rights, and political parties across the globe - including the Democratic National Committee (DNC) in the United States - have declared their support for rights of nature laws.
Tribal nations have also led the way. The White Earth Nation of Ojibwe has adopted a law recognizing the rights of manoomin (wild rice), and the Menominee, Yurok, Nez Perce, and Ponca Nations have adopted laws and resolutions recognizing the rights of rivers and other ecosystems. As they have expressed, this represents both an issue of sovereignty, as well as an alignment of tribal laws with long-held indigenous respect for nature.
Since it is beyond thinkable in the U.S. that the federal and state governments - which rely on largesse provided by the largest industries of our day - will suddenly find themselves in favor of a system of law that threatens that, a grassroots movement must emerge which becomes powerful enough to force them to do so. Part of that movement must also force these changes at the local level, by continuing to recognize the rights of nature through local, municipal governments.
In the end, this is the beginning of a long journey to rediscover our place on this planet. As Derrick Jensen, an environmental author, writes, "If we wish to stop the atrocities, we need merely to step away from our isolation. There is a whole world waiting for us, ready to welcome us home."
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Amazonian Indigenous Leaders Share Earth Day Video Message With the World
Leaders from Amazon Sacred Headwaters region deliver unified message: ‘Caring for the forests is caring for your life and future generations.’
Apr 22, 2020
They come from different countries and different nationalities, but this Earth Day, Indigenous leaders from a region known as the Amazon Sacred Headwaters are putting forth a unified message to the world that "caring for the forests of the Amazon is caring for your life and future generations." Home to half a million Indigenous peoples from more than 20 nationalities, including uncontacted peoples, the Amazon Sacred Headwaters region spans 74 million acres and is considered to be the most biodiverse region in the Amazon Basin, and likely the world.
Right now, Indigenous federations and nationalities in the region are fighting against the urgent threat of expanded oil drilling. More than 200,000 square miles (an area the size of Texas) are at risk of being opened up for oil development, which is a gateway to forest fragmentation and future deforestation.
The Indigenous leaders in the video are part of the Amazon Sacred Headwaters Initiative, an Indigenous-led effort working to advance a different model for the Amazon region. The initiative is grounded in ecological stewardship and cultural vibrancy and the expansion of Indigenous rights and territories, instead of the business-as-usual models of extraction that often don't benefit local communities and leave behind a toxic legacy.
Despite facing tremendous pressure from expansions of oil drilling, mining, palm oil, logging, big agriculture, and other forms of extractivism, this Earth Day message from Indigenous leaders is one of hope that connects us to our shared humanity and highlights the opportunity to work together to protect the Amazon. These messages are especially relevant given the recent pipeline ruptures in Ecuador threatening Indigenous communities in the Coca and Napo river basins, and the news that COVID-19 has reached the Amazon and is putting Indigenous communities at risk.
"Caring for the forests of the Amazon, is caring for your life and future generations," says Rosa Cerda, Vice President of the Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENIAE).
"Indigenous people defend the forests. Let's defend the defendants," says Jorge Perez, President of the Regional Organization of the Indigenous Peoples of the East (ORPIO).
"The Amazon Basin and the Indigenous peoples' territories are a guarantee for the global climate equilibrium. Therefore, we need an Amazonia alive to protect humanity," says Tuntiak Katan, Vice Coordinator of the Indigenous Organizations of the Amazon River Basin (COICA).
AMAZON SACRED HEADWATERS INITIATIVE
As part of the Amazon Sacred Headwaters Initiative, allied organizations -- including Amazon Watch, Stand.earth, Pachamama Alliance, and Fundacion Pachamama -- and indigenous federations in Ecuador and Peru -- including AIDESEP, COICA, CONFENIAE, ORPIO, and GTANW -- are working to draw global attention and support to halt industrial extractivism and protect the Amazon Sacred Headwaters region.
In a declaration calling for alternative forms of development rooted in ecological stewardship, indigenous leaders from the region have proclaimed their ancestral territories are under immediate threat from oil drilling, mining, and other industrial scale projects and urged governments and investors to act now to halt approvals and financing of new projects.
In December 2019 at COP 25 in Madrid, the Amazon Sacred Headwaters Initiative coordinated an international press conference with Indigenous leaders from the Amazon and released an in-depth report that captured global media attention and spotlights the threats facing this ecological and cultural gem. The report highlights how California, China, and other countries are complicit in its destruction.
Indigenous leaders featured in the video include:
- TUNTIAK KATAN, Vice Coordinator of COICA (Amazon Basin Indigenous Organization)
- LIZARDO CAUPER PEZO, President of AIDESEP (Peruvian Indigenous Federation)
- SANDRA TIKUP, Director of Territories, CONFENIAE (Ecuadorian Indigenous Federation)
- JORGE PEREZ, President, ORPIO (Peruvian Indigenous Federation)
- DELFINA CATIP TAWAN, Leader of Women's Programs, AIDESEP (Peruvian Indigenous Federation)
- ROSA CERDA, Vice President, CONFENIAE (Ecuadorian Amazonian Indigenous Federation)
- MARLON VARGAS, President, CONFENIAE (Ecuadorian Amazonian Indigenous Federation)
For more information on the Amazon Sacred Headwaters Initiative, visit www.sacredheadwaters.org (English) and www.cuencasagradas.org (Spanish).
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